Eric Posner: "Why Originalism Is So Popular"

Why Originalism Is So Popular

Eric Posner

The New Republic

January 15, 2011

When members of the House read aloud the Constitution at the start of the legislative session last week, the event was widely regarded as a political stunt. Commentators mocked the House GOP for squabbling over the procedure for reading the text and for skipping passages that had been superseded by amendment—although it’s not clear what’s wrong with skipping provisions that are no longer in effect. But if the reading of the Constitution was a stunt, it is nonetheless remarkable for what it says about the rapid political rise of the once-obscure, ivory-tower theory of originalism.

Originalists believe that the Constitution—the set of rules that structure and limit government—has the meaning that was ascribed to the original document by those who drafted and ratified it, as modified by the various amendments, as understood by those who drafted and ratified them. The contrary view is that the Constitution evolves with the times. Judges and elected officials interpret and reinterpret it in light of their own changing values, and these interpretations pile up and form a body of political and judicial precedent that certainly bears some resemblance to the original understanding, but diverges considerably from it. Non-originalists dominated the judiciary for decades and still dominate the academy. Although originalist ideas have floated around since the Founding, the modern theory was produced by a small group of mostly marginalized (conservative) academics, whose ideas were rarely taken seriously by the most influential (liberal) scholars in the top law schools.

And yet today originalism has made headway in the courts and ascended in the political scene, to the point where the leaders of the House of Representatives spent their first hours in session paying homage to it. What accounts for this turn of events? Originalists would tell you that the answer is the force of their arguments—but actually, the answer has more to do with politics than anything else.